Dan Marinescu v Judecatoria Neamt, Romania
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mr Justice Saini |
| Judgment Date | 12 September 2022 |
| Neutral Citation | [2022] EWHC 2317 (Admin) |
| Docket Number | Case No: CO/4264/2020, 4507/2020 & 4353/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2317 (Admin)
Lord Justice Holroyde
Mr Justice Saini
Case No: CO/4264/2020, 4507/2020 & 4353/2020
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Cooper KC and Alex Tinsley instructed by Shaw Graham Kersh for the appellant Dan Marinescu
Ben Cooper KC and Ben Joyes instructed by Taylor Rose MW for the appellant Florin Rusu
Ben Cooper KC and Jonathan Swain (instructed by Taylor Rose MW) for the appellant Iulian Varlan
John Hardy KC and David Ball (instructed by CPS Extradition Unit) for the Respondents
Hearing date: 29 March 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to the National Archives. The date and time for hand-down is deemed to be 11:00 on 12 September 2022.
Lord Justice Holroyde and
Each of the three appellants appeals against the decision of a District Judge (Magistrates' Courts) (“DJ”) ordering that he be returned to Romania pursuant to a European Arrest Warrant (“EAW”). This is the judgment of the court.
The appellants are in materially similar circumstances, and raise similar grounds of appeal. No distinction need be drawn between them. Each contends that, if returned, there are strong grounds for believing that he faces a real risk of being detained in conditions which will violate his rights under article 3 (“art. 3”) of the European Convention on Human Rights (“the Convention”). Each contends that the risk arises because he will face a combination of limited personal space and other inappropriate prison conditions.
It is unnecessary to give more than a bare outline of the appellants' respective cases. For convenience only, and intending no disrespect, we shall for the most part refer to the appellants by their surnames, and to the respondent judicial authorities collectively as “the respondents”.
The extradition hearings:
Dan Marinescu, now aged 55, was convicted by the Targu Neamt Law Court of an offence in June 2016 of failing to provide biological samples following his arrest for drink driving, and was subsequently sentenced to 12 months' custody, all of which remains to be served. An EAW was issued on 21 August 2019 and certified in this country by the National Crime Agency on 9 May 2020. On 13 November 2020 DJ Hamilton ordered his extradition to Romania.
Extradition had been challenged before the DJ on a number of grounds, including “the wholly unsatisfactory state of some of the detention facilities in Romania”. It was probable that, after the initial quarantine period at the Bucharest Rahova Penitentiary (“Rahova”), Marinescu would serve his sentence at the Iasi penitentiary (“Iasi”). The Romanian authorities had provided an assurance on 19 May 2020, specific to Marinescu, which gave details as to the conditions and regime at Iasi and provided an undertaking to Marinescu of a personal space of 3m 2 throughout his sentence; but it was submitted on his behalf that the DJ should find that Romania was failing to comply with such assurances. The DJ rejected the evidence which was relied on as showing such a failure. He concluded that he was bound by case law, in particular Scerbatchi v First District Court of Bucharest, Romania [2018] EWHC 3612 (Admin) and Gheorge v Giurgiu District Court, Romania [2020] EWHC 722 (Admin), to apply the presumption that an EU state such as Romania will comply with any diplomatic assurance it has given in the course of extradition proceedings.
Florin Rusu, now aged 29, was convicted by the Iasi City Court of Law of offences of aggravated theft committed in 2013 and 2014, and was subsequently sentenced to 2 years 8 months' custody, all which remains to be served. The EAW in his case was issued on 24 March 2020 and certified three days later. On 27 November 2020 DJ Zani ordered his extradition to Romania.
Rusu had challenged his extradition on a number of grounds. In relation to art. 3, the Romanian authorities had provided Further Information dated 22 April 2020 which indicated that it was highly probable that Rusu would serve at least part of his sentence at the Botosani penitentiary (“Botosani”) and part at Iasi. Details were provided of the accommodation, conditions and regime in both those prisons. The Further Information included an undertaking to provide a minimum individual space of 3m 2 for the duration of Rusu's sentence. Rusu contended before the DJ that the undertaking was not reliable and that the guarantees concerning other material conditions in prison were inadequate.
In rejecting the art. 3 grounds of challenge, the DJ noted that a Divisional Court had accepted assurances, comparable to those offered to Rusu, in Adamescu v Romania [2020] EWHC 2709 (Admin). He did not accept a submission that the Romanian authorities should provide detailed and specific Further Information in relation to each requested person.
Iulian Varlan, now aged 40, was convicted by the Iasi City Court of Law of an offence of assault committed in 2014, and was subsequently sentenced to 2 years 6 months' custody, all which remains to be served. The EAW in his case was issued on 14 May 2019 and certified on 11 June 2020. On 18 November 2020 DJ Griffiths ordered his extradition to Romania.
Varlan's grounds of challenge before the DJ had included an art. 3 issue as to prison conditions in Romania. An assurance, specific to him, had been provided by the judicial authority in Further Information dated 10 July 2020. It guaranteed a minimum cell space of 3m 2 both at Rahova during the quarantine period and at the Vaslui penitentiary (“Vaslui”). The Further Information included “a lot of detail” about the conditions at Vaslui. The DJ accepted that there were general concerns about the prison estate in Romania and that assurances were therefore required, but accepted the assurance offered to Varlan as clear and specific, and sufficient to exclude any real risk that Varlan would face treatment which violated his art. 3 rights. She rejected as insufficient the evidence relied on by Varlan in seeking to rebut the strong presumption that Romania was willing and able to fulfil its assurances.
The grounds of appeal:
Each of the appellants contends that the DJ who ordered his extradition was wrong to reject his art. 3 ground of challenge.
The appellants have applied for permission to rely on fresh evidence concerning prison conditions and the personal space available to prisoners in Romania. If permission is granted, the respondents have applied to rely on fresh evidence in response. Some of the material which is the subject of these applications was before the court at the hearing of the appeals. At the conclusion of the hearing, judgment was reserved. Further material has been provided by the parties subsequently, together with accompanying written submissions. It has not been necessary for a further hearing to be convened. The court has considered all the material de bene esse.
The assurances provided by the respondents:
It is common ground that, if returned to Romania, each appellant will be held in the quarantine and observation section at Rahova for an initial period of 21 days. Thereafter, each will be allocated by the National Administration of Penitentiaries (“NPA”) to a prison of the appropriate regime, taking into account proximity to his place of residence. It is probable that Marinescu will serve his sentence in open conditions at Iasi; Rusu will serve part of his sentence in semi-open conditions at Botosani, from where he is likely to be transferred at a later stage to open conditions at Iasi; and Varlan will serve part of his sentence in semi-open conditions at Vaslui, from where he too is likely to be transferred to open conditions at Iasi.
As has been indicated, each of the DJs accepted that adequate assurances had been provided by the respondents. Those assurances were given in letters from Prison Police Commissioner Fabry, Director of the Directorate for Prison Safety and Execution Regimes, to Dr Onaca, Director of the Directorate for International Law and Judicial Cooperation in the Romanian Ministry of Justice.
By the time of the hearing of the appeals, those assurances had been supplemented in each case by a letter dated 4 March 2022 written by Chief Commissioner of Correctional Police Paun, Director of the Directorate for Detention Security and Prison Regime, and addressed to Dr Onaca in the Romanian Ministry of Justice. Each of the letters is in similar terms. They state that during the quarantine and observation period at Rahova, each appellant “will benefit from at least 3m 2 of personal space”, will have the right to walk for 2 hours daily and will have access to a number of other activities outside the detention room. Details are given of the shared detention rooms at Rahova, including the size of the rooms, the lighting and heating, the toilet rooms, the furniture and the availability of drinking water. Each letter included an assurance expressed in the following terms:
“In consideration of the perspective of implementing the measures from the “Action Plan for the period 2020–2025, drafted in order to execute the pilot judgment Rezmives and others against Romania, as well as the judgments delivered in the group of cases Bragadireanu against Romania”, as well as the number of detainees currently guarded by the National Administration of Penitentiaries, following the criminal policies adopted by the Romanian state, the National Administration of Penitentiaries guarantees the provision of a minimum personal space of 3m 2 while serving the punishment, including the...
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